One of the main issues to be decided in the Sherrod and 3M appeals is whether there is a right to immediate appeal from the denial of an anti-SLAPP motion. In urging the DC Circuit to summarily affirm the district court’s decision denying the anti-SLAPP motion, Ms. Sherrod argued that the statute did not provide a right to immediate review and that the appeal should be dismissed on that basis alone. 3M made a similar argument in moving to dismiss the Davis defendants’ appeal. In response, the DC Circuit ordered, here and here, that “the motion to dismiss be referred to the merits panel to which this case is assigned.” Accordingly, the media amici have indicated that, if they are allowed to file a brief, they intend to address this issue.
Of course, the District of Columbia has already explained why the DC anti-SLAPP statute does not provide an express right to immediate review. When it filed a brief in the 3M case in the federal district court, it wrote:
As originally introduced, the Act contained a provision that would have provided for an additional protection for Anti-SLAPP defendants: ‘a right of immediate appeal from a court order denying a special motion to dismiss in whole or in part.’ Comm. Rep. at 12. The Council, however, closely considered the then-recently issued DCCA panel decision in Stuart, which had held that ‘the Council exceeds its authority in making such orders reviewable on appeal.’ Comm. Rep. at 7. As a result, the Council removed that provision, acknowledging the DCCA panel’s decision, which at the time had not been vacated.
The issue of whether the denial of an anti-SLAPP motion can be immediately appealed is percolating deep in the heart of Texas. Last year, Texas passed its own anti-SLAPP statute. While anti-SLAPP motions were initially granted by the courts, when two anti-SLAPP motions were denied, the unsuccessful movants appealed them.
In recent decisions, the Texas Court of Appeals has held that there is no right to immediate appeal. First, in Jennings v. Wallbuilder Presentations, Inc., the court, after parsing the statute, found that the plain language did not provide a right to immediate review. While noting that the statute did provide for an immediate right to appeal when the trial court failed to promptly act on an anti-SLAPP motion, the appellate court found this language did not extend to situations where the trial court acted on (and denied) an anti-SLAPP motion. It refused to read (or “imply”) such a right onto the statute.
The same court adhered to its ruling in Lipsky v. Range Production Company, stating that, “for the reasons set forth in Jennings, we dismiss appellants’ appeal for want of jurisdiction.” Interestingly, though, the Lipsky court held that, while it did not have jurisdiction under the anti-SLAPP statute, it would consider the appeal as a petition for a writ of mandamus. (This procedural mechanism was also cited by the Metabolic court as a possible vehicle for securing immediate appellate review).